Cox v. Williams, 58 N.C. 150, 5 Jones Eq. 150 (1859)

Dec. 1859 · Supreme Court of North Carolina

58 N.C. 150, 5 Jones Eq. 150

E. A. COX AND WIFE, BARBARA, against ARETUS WILLIAMS AND OTHERS.

Where a testator gave land and negroes to the separate use of a feme covert, his daughter, expressing a want of confidence in her husband, and forbidding the trustee from letting him have possession of the slaves, but leaving it discretionary whether he would rent out the. land or permit the family to occupy it, it was Held that the husband and wife had no equity to compel ■ the trustee to give them possession of the p!-operty for a home.

Cause removed from the Court of Equity of Jones county.

Lewis Williams, by his will devised and bequeathed, among other things, as follows, viz: “ Having no confidence whatever in E. A. Cox, the husband of my daughter, Barbara, I give and bequeath and devise unto my son, Aretus Williams, his heirs, executors, administrators and assigns, forever, the following property, that is: the tract of land whereon I now reside, subject to the life-estate of my wife therein, and a negro woman, named Sarah, in special trust and confidence, nevertheless, that he and they will hold the same for the sole and separate use and benefit of my daughter, Barbara Cox, and- during her natural life, in such manner that the same shall in no event be subject to the control or liable for the debts, or contracts, of her husband, E. A. Cox, and I wish Aretus, or his executors, &c., to allow his sister, Barbara, either on the said place to live, or rent it out,” with ulterior limitations of the trust to the children of the said Barbara. In a subsequent clause, he gives to his wffe a number of slaves for her life, with remainder to Aretus Williams, in trust, for the sole and separate use of Barbara Cox, as in the preceding clause. Mrs. Irena Williams, by deed, properly authenticated, surrendered to Aretus Williams her life-estate in the land and slaves, given her by the will of her husband, to hold the same as trustee for Mrs. Cox, according to the trusts declared in the foregoing will.

Cox, the husband, and his wife, filed this bill against the trustee, setting out that it would greatly promote the comfort of the family of Mrs. Cox, and preserve and increase the value of the land and slaves intended for her benefit, for her and her husband, to have the possession of the property for the purpose of carrying on farming operations, and pray that a decree may pass the Court to chat effect.

The defendant demurred to the bill, generally, for the want of equity.

The cause was set down for argument on the demurrer, and sent to this Court by consent.

Haughton, for the plaintiffs.

J. N. Washington, for the defendants.

PeaRSON, C. J.

The object of the bill is to have the land and negroes put into the possession of the feme plaintiff, so as to let her have the use of the property for the purpose of carrying on a farm, without the control and superintendence of the trustee, and the equity is put on the ground, that she would thus be furnished with a comfortable home, and her support and maintenance be better provided for than by allowing the property to continue under his management. The defendant has filed a demurrer, and, in support of it, urges: that if the property is put into the possession of the feme plaintiff, it would, as matter of course, be subject to the control and management of her husband, the other plaintiff, and thereby defeat the purpose of the trust, and be in direct violation of the expressed directions of the testator.

It is clear, from a perusal of the will, that the testator did not intend that the property, the use of which is given to his daughter, should, in any event, be -subject to the control of Oox; for this reason, he gives the property to his son, so that it may be under his management; and, to remove all room for doubt, he sets out, in so many words, that he does so, because “hehas no confidence whatever in E. A. Cox, the husband of his daughter.”

In respect to the land, he relaxes, in some degree, and gives to his son a discretion “ either to let his sister live on the place, or rent it out,” but this restricted discretion tends to show, the more plainly, that in regard to the negroes, there was to be no discretion, and his son was to keep them under his exclusive management. So, it is manifest, that the object of the bill is in direct contravention of the trusts declared by the testator. See how it would operate. Suppose, instead of merely permitting his sister to “ live on the place,” which is within his discretion, the trustee should be required, by a decree of this Court, to let his sister have possession of the plantation and the negroes also ; it would then become necessary, in order to carry on the farm, that horses, cattle, farming utensils, &c., should be provided, and as she is under the control of her lmsband, it would follow that the entire management and control of the concern wonld fall into his hands.

A testator has a right to give his property with such restrictions, and upon such terms, as he sees proper, and the courts are bound to carry his intention into effect,-unless .there be something in the trusts unlawful and.against public policy. So that, so far from showing an equity, the plaintiffs, on their own showing, have none.

We deem it unnecessary to refer to any • authority, aud put our decision upon the peculiar circumstances growing out of the special provisions of this will.

Pee Curiam, Bill dismissed.